R2PCS Listserv
24 July 2008responsibility to protect Engaging Civil Society
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In this issue:
I. ICC and R2P
1. STATEMENT BY WILLIAM PACE AT THE UN MENTIONING R2P
2. SUDAN- THE ICCS BIG TEST

V. Featured Reports
1. ENOUGH PROJECT: IRRESOLUTION: THE UN SECURITY COUNCIL ON DARFUR
2. UNHCR: RESPONSIBILITY TO PROTECT: A REPERTOIRE OF MEASURES INCLUDING ASYLUM FOR POTENTIAL VICTIMS
3. CHATHAM HOUSE: THE RESPONSIBILITY TO PROTECT AND THE PROBLEM WITH MILITARY INTERVENTION

I. ICC and R2P

1. Statement by William Pace at the UN mentioning R2P
Coalition for the International Criminal Court
17 July 2008

For the 10th anniversary of the creation of the Rome Statute, held at the Trusteeship Council in the United Nations Secretariat building on July 17th, Coalition for the International Criminal Court Convenor William Pace was given the honor of being a panelist to commemorate the establishment of the Statute alongside Secretary General Ban Ki-moon, ICC President Philippe Kirsch, ICC prosecutor Luis Moreno Ocampo, and Suriname Parliament member Dr. Ruth Wijdenbosch.

Mr. Paces speech emphasized the historical significance of the ICC, the achievements of the statute, and the future challenges that the ICC must overcome. When addressing the issue of complementarity between national and international legal systems, Pace mentioned the importance of the development of the R2P norm.

The following is a short extract of Mr. Paces speech:

Complementarity is the fundamental basis of the new system of international criminal justice instituted by the Rome Statute. It is built upon the principle that the most serious crimes must not go unpunished and that the investigation and prosecution of such crimes is a duty, in the first place, of all States through their national legal systems, and, if they fail or are unable to do so, the international community and ICC must assume responsibility. The full implementation of this principle is the most important challenge of the Rome Statute system. Much, much more work remains to be done by governments and others to fully define and operationalize complementarity. In a very significant development, while the Rome Statute establishes individual accountability for war crimes, genocide and crimes against humanity, the heads of governments in the 2005 UN reform summit, all agreed to a new doctrine of state and international community responsibility for the same crimes, called responsibility to protect.

(...) Globalization is almost always framed in terms of economics and finance, and information. But, in truth, there has been a globalization of democracy, human rights, the rule and law, and justice in this last century. I would argue that these aspects of globalization are also foundations for the other forms. (...)

To watch the event, please go to the UN webcast at: http://iccnow.org/?mod=rome〈=en

Since the International Criminal Court decided to indict Omar Hassan al-Bashir, the President of Sudan, for war crimes earlier this week, the chorus of criticism has grown deafening. Khartoum, with support from Beijing and Moscow, is outraged by what it sees as a flagrant invasion of Sudans sovereignty. U.N. and African Union bureaucrats and aid workers worry the charges will imperil the safety of peacekeepers and aid workers in the country (and with reason; AU troops there have increasingly become targets of late, scarcely able to protect themselves let alone the people of Darfur). Meanwhile, pundits opine that the indictment represents another instance of overreaching by an international body, and will make any peace settlement in Sudan even harder to achieve (by reducing Bashirs incentives to cooperate). The old debate over whether its better to seek justice or peace (which may mean offering amnesty to the worst malefactors) has been taken up once more.

There are several problems with these arguments. As for sovereignty, thats a nonstarter. Since Nuremberg, the international community has recognized that certain laws and norms have universal jurisdiction, applicable everywhere. And a new principle of international law adopted by the Security Council in 2006, known as the responsibility to protect, holds that local governments can now effectively default on their sovereignty when they egregiously abuse their own citizens--as Khartoum most certainly has. The case for overreaching is similarly thin. Luis Moreno-Ocampo, the chief prosecutor of the ICC, is no cowboy, and didnt undertake this indictment on his own initiative. He was doing his job. The Security Council itself (including Raussia and China) first ordered him to investigate the Sudanese government in 2005, and the indictment was a natural conclusion of that process. (...)

Will the indictment actually make things worse, however, by reducing the likelihood that Bashir will deal? Again thats unclear, but it seems unlikely. First, remember that there currently is no peace process underway, so the charges wont disrupt anything. Second, as Richard Goldstone, former prosecutor for the Yugoslav tribunal, argues, indictments during the Balkan wars in the 1990s actually made things easier by removing some of the most notorious hardliners from the bargaining table. (...)

Source: http://www.un.org/News/Press/docs/2008/sc9396.doc.htm

The Security Council nonetheless produced a Presidential Statement condemning the campaign of violence against the political opposition ahead of the second round of the Presidential elections scheduled for 27 June. It also expressed concern over the grave humanitarian situation and worries about the impact of the situation in Zimbabwe on the wider region, while welcoming the recent international efforts, including those of SADC leaders and particularly President Mbeki.

Original 1996 briefing paper presentation to the US State Department: http://www.responsibilitytoprotect.org/index.php/civil_society_statements/1765

2. Stop Burma Aid, Government Urged
InTheNews.co.UK
21 July 2008

The [UK] government has been told it should freeze humanitarian aid to Burma if it continues to be abused by the country's military rulers.

An influential committee of MPs claims further use of funds for anything other than relief by the Burmese junta should lead ministers to consider invoking their "responsibility to protect" to the south-east Asian country's population. (...)

Noting the "reprehensible" abuse of human rights and civil liberties in Burma, its members write: "We recommend that the government should put in place very strict measures to ensure that its aid cannot be misused by the regime, and inform us of these measures in its response to this report.

"We further recommend that, in principle, the government should not rule out invoking the 'responsibility to protect' in situations such as Burma, but that this should be guided by a practical assessment of the situation on the ground, and the likely wider consequences of such intervention."

Aid workers have warned however of the devastating effect of cutting off aid to Burma, one of the world's poorest countries. (...)

A French diplomat, Alain Le Roy, has been appointed by the United Nations secretary general, Ban Ki Moon, as the world's chief peacekeeper. With UN peace operations facing the most serious crisis since Rwanda and Srebrenica, the timing could not be more critical. ()

Recent reports from Darfur, the largest and most expensive UN mission to date, are reminiscent of the news from Bosnia in the weeks before the fall of Srebrenica: UN peacekeepers, facing a logistical and political nightmare, are unable to defend themselves, let alone protect the civilian population. Were further large-scale atrocities to occur under the UN's watch in Darfur, the repercussions would threaten to undermine the entire business of peace operations.

There is a risk of an all-out anti-UN backlash overshadowing the good work UN peacekeepers have done in exceptionally difficult circumstances over the past decade. UN members need to act now and give the new head of peacekeeping the tools and support necessary to pull UN peacekeeping back from the brink.

To accomplish this, member states need to clearly commit to the doctrine that a UN peace operation should only be deployed if there is actually a peace to keep, underwritten by a credible commitment by the major conflict parties to work toward a political solution. If taking the "responsibility to protect" seriously in some cases requires military intervention, member states should not rely on the instrument of peacekeeping, which is ill-suited for this task.

Therefore, under present circumstances the UN should not deploy peacekeepers to Somalia or Chad, where the absence of political will among rival parties renders peacekeepers as little more than turquoise targets.

Key member states must also lower expectations on what peacekeepers can realistically achieve in Darfur. They must make it crystal clear to the public that the absence of peace in Darfur is not the fault of UN peacekeepers but a result of the international community's inability to force the conflict parties into a lasting political settlement.

In addition, UN members urgently need to invest in the infrastructure for peace operations worldwide. Resources need to match the grandiose rhetoric and ambitious goals set out in Security Council mandates. This includes seriously enlarging the UN's standby blue helmet capacity - with a clear manpower commitment on the part of the United States, Canada and Europe, not just Asian and African states who currently supply the vast majority of peacekeepers. ()

2. Embracing the responsibility to protect: a Repertoire of Measures Including Asylum for Potential Victims
Brian Barbour, JD, Brian Gorlick
New Issues in Refugee Research- UNHCR
July 2008

At the 2005 World Summit, the United Nations General Assembly unambiguously recognized a collective international responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. Each State has the responsibility to protect their population from these four egregious crimes and the international community, through the United Nations, also has the responsibility to protect these same populations. The recognition of a positive obligation inherent in the concept of sovereignty represents a substantial leap forward in international law.

The implications of this responsibility to protect (R2P) remain controversial and the future of the concept remains uncertain. This paper addresses the potential operational substance and application of R2P on the ground. This paper does not address the distinct issue of criteria for humanitarian intervention. Distinction between these two concepts is critical to an understanding of the potential impact of R2P. There are a number of measures short of military intervention that are less controversial and are directly implicated by the recognition of a collective R2P.

The debate surrounding the limits of, and criteria for, military intervention in the affairs of a sovereign State to prevent mass atrocities in the context of R2P can and should continue. Meanwhile incidents of genocide, war crimes, ethnic cleansing, and crimes against humanity can be greatly diminished by operational application of R2P through domestic and international humanitarian actors who can provide early warning, risk analysis, technical assistance and capacity building, as well as international protection through asylum and other measures designed to prevent victimization.

There may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms. A related concern is for states to take effective measures to ensure the protection of internally displaced persons who are often victim to R2P-related crimes. This paper seeks to identify some of the preventive, responsive and rehabilitative measures that are implicated by R2P with a focus on diplomatic, humanitarian, and other peaceful means.

Full Report : http://www.chathamhouse.org.uk/publications/ia/archive/view/-/id/2293/
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